GENERAL TERMS AND CONDITIONS OF CONTRACT
A bid is an agreement by Jim Dandy Sewer and Plumbing (“Jim Dandy”) to perform all work specified for a fixed price plus tax and applicable permit fees. If the actual cost of the work is more or less than the bid, the customer remains obligated only to pay the amount of the bid. The bid does not include, and may be adjusted as a result of change orders or extra work that arises as a result of “Changed Conditions” or that is requested by the customer or requested by the applicable public authority(s).
An estimate is Jim Dandy’s approximation of the eventual actual total price. An estimate is not a guaranty as to the actual price nor is an estimate a maximum price. The total price may substantially exceed the amount of the estimate, in which case the customer shall be obligated to pay the actual price. If it appears that the actual price will likely and substantially exceed the amount of the estimate, Jim Dandy will make every effort to notify the customer, if practical to do so. This notification will be verbal and will inform the customer of the fact that substantially more work is required than originally foreseen at the time that the estimate was given. It may or may not be possible to quote a firm bid for completion at that time. The customer may therefore request that Jim Dandy stop work, in which case the customer shall remain obligated to pay Jim Dandy through cessation of the work on a time and materials basis using Jim Dandy’s current labor rates plus the “Cost of the Work” as defined herein.
3. CHANGE ORDERS OR EXTRA WORK
“Changed Conditions” shall be deemed to exist when: (i) plans or specifications fail to sufficiently describe the scope of work with reasonable accuracy, or (ii) final plans or specifications involve modifications or changes from the original plans or specifications, or (iii) the conditions of the physical site were not reasonably discoverable prior to the commencement of work, or (iv) any governmental entity having jurisdiction over the project or any portion thereof imposes any change, revision or additional work/material not original contemplated by the parties. Further, the customer may request changes or modifications in the scope of the work, which requests may be agreed upon orally or in writing, and which shall constitute a “Changed Condition” as well. The estimate or bid, as applicable, will be adjusted due to any “Changed Condition.” If agreed upon in writing, the terms of the written change order shall be binding on the parties. However, unless otherwise agreed in writing, all extra work performed shall be calculated on a time and materials basis using Jim Dandy’s current labor rates and the actual and comprehensive “Cost of the Work.”
4. COST OF THE WORK
The “Cost of the Work” shall include, without limitation, the acquisition cost of materials, supplies, consumables, disposal fees and any other materials applied on or about the project or incident to Jim Dandy’s performance of the work. “Cost of the Work” includes all charges assessed, levied or imposed by any subcontractor or third party provider, including, but not limited to transportation and delivery, storage, shipping and handling, packaging, restocking fees, equipment rental and insurance on equipment rental (deemed reasonably necessary and at Jim Dandy ’s discretion). “Cost of the Work” includes any fees or charges associated with any permits, special inspections, analysis or reports, surveys, soil testing or traffic control which are paid directly by Jim Dandy. “Cost of the Work” also includes the value paid for tools and supplies normally consumed in the performance of the work and customarily replaced in the course of performance. If Jim Dandy uses any of its own tools, vehicles or equipment in the performance of the work, the “Cost of the Work” shall include charges for use of such based on Jim Dandy’s then current shop rate for such tools, vehicles or equipment. If customer fails to pay Jim Dandy in a timely manner, thereby resulting in interest, late fees, or penalties accruing against Jim Dandy, such interest, late fees or penalties shall be included as part of the “Cost of the Work.”
5. PERMITS AND INSPECTIONS
Jim Dandy is not responsible for any fees or costs associated with any permits, special inspections, analysis or reports, surveys, soil testing or traffic control; such fees and costs shall be paid for by the customer.
Payment on any invoice is due within the sooner of: a) 15 days from the date of the invoice, or b) upon completion of the work. Payment in full is due upon completion of work.
It is the responsibility of the customer to schedule Jim Dandy’s work under this contract and to ensure that the physical site is accessible and ready for Jim Dandy to perform. If Jim Dandy arrives at the job site and is unable to proceed with carrying out the work, the customer agrees to pay Jim Dandy for the cost of mobilization and travel.
Jim Dandy at all times shall keep the premises free from accumulation of waste materials or rubbish caused by its operations. At the completion of the work, Jim Dandy shall remove all waste materials and rubbish from the site, together with its tools, construction equipment, machinery and surplus materials. The customer shall establish and guarantee to Jim Dandy the location of all underground restrictions or underground utilities, easements or rights of way, pipes, power lines, septic tanks, utility lines or drain fields. Customer shall assume complete responsibility for the protection of all landscaping, trees, shrubs, and bedding plants which may become damaged during the progress of construction. The customer shall establish and guarantee to Jim Dandy all property lines and agrees to hold Jim Dandy harmless from any claim of trespass or property line disputes, including the payment of damages, attorney’s fees and costs associated therewith.
Upon the completion of the work and Jim Dandy’s receipt of final payment from the customer, Jim Dandy warrants to the customer that all labor, materials and taxes will be paid for and there will be no liens against the premises arising out of the performance of Jim Dandy’s work. Jim Dandy further warrants that all work will be performed in a commercially reasonable manner and that there are no defects in materials or workmanship. Jim Dandy’s warranty hereunder does not extend to any work, materials, or items warranted by third parties, including without limitation, manufacturer’s warranties. We provide a warranty for all work performed, determined by the scope of work. “Substantial Completion” means the stage in the progress of the work when the subject of the work is operational and/or may be used for its intended purpose with only minor incidental work or correction or repair remaining to be performed by Jim Dandy. THIS WARRANTY IS GIVEN IN LIEU OF ALL OTHER EXPRESS OR IMPLIED WARRANTIES OF FITNESS, MERCHANTABILITY OR HABITABILITY OTHERWISE PROVIDED UNDER THE LAWS OF WASHINGTON. Any warranty claim must be made to Jim Dandy in writing within the warranty period from the date of Substantial Completion. Any warranty claim which is not made within the warranty period from the date of ”Substantial Completion” is waived. Any warranty work performed by Jim Dandy does not extend the warranty period. This warranty shall be void if a person or firm other than Jim Dandy performs or re-performs any work identified within the original scope of the work of this contract.
The customer agrees that payment on all amounts due and owing, whether liquidated or unliquidated, shall bear interest at the rate of 18% per annum or the legally maximum rate of interest, whichever is less.
11. JURISDICTION AND VENUE/ATTORNEYS’ FEES
For any dispute or controversy arising out of or relating to this agreement, wherein the amount demanded or the amount of damages claimed is less than $1,000.00 and which dispute or controversy does not involve the title or possession of real property (e.g. lien foreclosure), exclusive venue and jurisdiction shall lie with the King County District Court. For all other disputes or controversies arising out of or relating to this agreement, venue and jurisdiction shall lie with the Superior Court for the county in which the property is located. For any Superior Court action, regardless of the nature of the case or amount in controversy, the parties shall file a stipulation under Mandatory Arbitration Rule 8.1(b) to have the matter placed on the arbitration calendar and assigned to an arbitrator. The arbitrator shall have the authority to decide and rule on all matters, including those relating to the enforcement and foreclosure of mechanics’ and materialmen’s liens. In the event that a dispute or lawsuit arises and one or both parties seek and receive the assistance of an attorney, the prevailing party shall be entitled to recover their reasonable attorney’s fees, expert witness fees and costs from the non-prevailing party.
12. CORRECTION OR COMPLETION OF WORK
In the event that customer claims that any of Jim Dandy’s work performed hereunder is defective, customer shall provide notice of such claim to Jim Dandy, including a specific list of corrective or pick-up work to be performed and Jim Dandy shall have the irrevocable right to perform all corrective or pick-up work identified by the customer within a reasonable period of time following receipt of notice. Customer shall not contract with any alternative contractor for the correction, performance or completion of work within the scope of this agreement unless Jim Dandy shall have been provided the notice required herein and opportunity to cure as stated herein. If customer does contract with an alternative contractor to perform corrective work, pick-up work or otherwise complete the project, without first affording Jim Dandy the opportunity to do so, or if the customer proceeds to use or occupy the work claimed to be defective, the customer then agrees to accept all work “as is” and thereby waives any and all claims, of whatever nature, against Jim Dandy, including warranty claims.
Customer acknowledges and agrees that Jim Dandy and its affiliates, employees, agents and representatives may contact customer at any telephone number and email address customer provides, even if such phone number was previously registered on a Do-Not-Call registry. Customer agrees that Jim Dandy and its affiliates, employees, agents and representatives may use SMS/text messaging, automatic telephone dialing systems and artificial or prerecorded voice messaging in connection with calls or texts made to any telephone number customer provides, even if the telephone number is assigned to a cellular/mobile telephone service or other service for which customer may be charged. Jim Dandy will not charge customer for text messages. However, customer’s service provider’s standard message/data rates may apply.
14. ELECTRONIC SIGNATURE AND TRANSMISSION OF NOTICE
This agreement may be executed in electronic format and delivered to customer via e-mail or facsimile. Customer’s electronic signature and any retransmission or copy thereof shall be deemed to be an original signature. Customer understands that they may be entitled to receive Notice to Customer and/or Notice to Owner via certified or registered mail or personal delivery and hereby accepts delivery of any and all notices via e-mail or facsimile and acknowledges the same to be sufficient. Customer will not contest the sufficiency or form of delivery of any notice.
Should any term or provision of this agreement be deemed invalid, void or unenforceable as written, then such term or provision shall be given effect only to the extent that it remains valid and enforceable and the remaining terms and provisions of this agreement shall remain in full force and effect.
JIM DANDY ENTERPRISES, INC